Jurisdiction over the Turkish Steel Cases at the U.S. Court of International Trade and a Discussion of Relevant Issues in Turkish Law and Policy
ADMD Law Office
Steel is an important part of the Turkish economy, and an increasingly important part of Turkey's exports. According to the Office of the U.S. Trade Representative, Turkish steel production grew 117% from 2002 to 2012, making Turkey the world's number 8 producer of Steel and the world's number 7 exporter of steel. See 2012 Final Report on Turkey, p. 3 (2012), www.ustr.gov/sites/default/files/turkey.pdf. Turkey exported approximately half of its total steel output in 2012, amounting to 18.4mm metric tons of steel. See 2012 Final Report on Turkey, p. 3 (2012), www.ustr.gov/sites/default/files/turkey.pdf
U.S. domestic steel producers have consistently raised concerns about the Turkish steel industry, alleging that it is subsidized and unfairly aided by the Turkish government. The U.S. Commerce Department and its International Trade Administration have issued reports and determinations since 1986 and found a variety of Turkish subsidy programs to be dependent on export performance and imposed countervailing duty and anti-dumping penalties on the Turkish steel industry.
Turkish steel producers have challenged these rulings in the U.S. Court of International Trade (CIT) with varying degrees of success. The CIT has generally been more favorable to Turkish producers than the administrative agencies (namely Commerce). However the availability of CIT jurisdiction over these cases is not cut and dry.
The issue of CIT jurisdiction over these cases will continue to grow in importance as Turkey's steel production and export increase in absolute terms. Disputes between the U.S. and Turkish steel producers are already making their way through the WTO, with a case to be heard in July 2013. The ability of Turkish steel producers to seek judicial review in the United States therefore remains an important issue in Turkey-U.S. trade relations.
A. Turkish Law and Subsidies for the Steel Industry.
Turkey, like most other newly industrialized countries, has a variety of support programs for the domestic steel industry. These do not necessarily rise to a countervailable level, and Turkey has consistently maintained that they are at or below the de minimis level. Furthermore, Turkey has often contended that these subsidies are not necessarily tied to exports, a crucial factor in determining whether or not a subsidy or state support program qualifies as dumping or for a countervailing duty.
Nevertheless, certain Turkish programs appear problematic from an importing country perspective, and the U.S. government has consistently raised objections to several Turkish support programs for the steel industry.
One such program, expanded by a 2009 decision by the Council of Ministers, allows for steel exporters to receive state support for credit, insurance, and warranties. See Türkiye İhracat Kredi Bankası Anonim Şirketi (Eximbank) Tarafından Sağlanan Kredi, Garanti ve Sigorta Destekleri Hakkında Karar, [Decision Regarding Credit, Warranty, and Insurance Support from the Turkish Import Credit Bank (Eximbank)], Decision no.: 2009/15198, Taken: July 14, 2009 Published on date: July 15, 2009, in the Official Registry No.: 27289. Eximbank can offer credit to Turkish steel producers up to and including 20 million USD. See Decision Regarding Credit, Warranty, and Insurance Support, Art. 5, Cl. (1)(a) and (b).
Furthermore, in a decision originally taken in 1999 the Turkish Foreign Trade Secretariat (T.C. Dış Ticaret Müsteşarlık) provided a mechanism for Turkish steel exporters to reduce their tax paid for export revenues. See İhracat, İhracat Sayılan Satış ve Teslimler ile Döviz Kazandırıcı Hizmet ve Faaliyetlerde Vergi, Resim ve Harç İstisnası Hakkında Karar, [Decision Regarding the Reduction of Tax and Duties for Export Activities and Services Earning an Exchange with Sales and Deliveries from Exports], Decision no.: 99/13812, Taken: December 23, 1999, Published on date: December 31, 1999 in the Official Registry no.: 23923. Under this program, tax reductions are available for exporters within 24 months of the claimed reduction. Decision Regarding the Reduction of Tax and Duties, Art. 8.
Further guidelines for tax credits for exporters were put forth in 2001/1 Sayılı İhracat Tebliği, [Export Communiqué Number 2000/1], Published on date: October 14, 2001 in the Official Registry No. 23933, and in 2004/1 Sayılı İhracat Tebliği, [Export Communiqué Number 2004/1], Published on date: March 6, 2004 in the Official Registry No.: 25404. These guidelines allow for reductions for stamp duty, taxes on bank accounts and insurance, and state levies. See Dr. Dillek Seymen, İhracatta Devlet Yardımları [State Aid for Exports] Presentation p. 19.
In a 2001 report entitled “Subsidy Amounts and Sector Distribution of Tools to Encourage Exports” (Subsidy Report), the Turkish government’s General Directorate for Economic Models and Strategic Research (Ekonomik Modeller ve Stratejik Araştırmalar Genel Müdürlüğü) laid out the subsidy program available to steel producers. See Nezih Kaynar (Planning Director), İhracatı Teşvik Araçlarının Sektörel Dağılımı ve Subvansiyon Miktarları, [Subsidy Amounts and Sector Distribution of Tools to Encourage Exports], General Directorate for Economic Models and Strategic Research (November 2001). In this Subsidy Report, the iron and steel industry was found to have received 812,905.6 billion TL (old TL) in credit from Eximbank, as well as an export incentive payments totaling 17,591 billion TL (old TL). See Kaynar supra at 4-6.
In a memorandum on the Turkish steel industry, the ITA described subsidies available to Turkish steel exporters as enjoying the following forms of state support: 1) pre-shipment export credits; 2) deduction from taxable income for export revenue; 3) foreign exchange loan assistance; 4) investment allowance under the general incentive program (GIP); and 5) a VAT support program. See Final Results of Expedited Sunset Review: Welded Carbon Steel Standard Pipe from Turkey, 70 FR 62097 (October 28, 2005).
While the ITA did not find that all Turkish steel producers enjoyed support that rose to a countervailable level, it found that some producers did. Final Results of Expedited Sunset Review: Welded Carbon Steel Standard Pipe from Turkey, 70 FR 62097. Similar results were found in ITA reviews in 2007, 2009, and 2011. In order to challenge these results in court, Turkish producers then and now try to go before the U.S. Court of International Trade. However, this court's jurisdiction is narrowly defined, and not every case can be heard by the Court.
B. The Development and Principles of the Jurisdiction of the United States Court of International Trade.
Congress enacted the Customs Courts Act of 1980 (28 U.S.C. §§ 1581 et seq.) in order to increase and define the jurisdiction of the Court of International Trade (previously the United States Customs Court) and to establish it as the comprehensive forum for resolution of civil disputes regarding imports and international trade. H.R. Rep. No. 96-1235, 19. Congress’ purpose in enacting this legislation was to bring the Court in line with “increasing complexities of modern day trade litigation.” H.R. Rep. No. 96-1235, 18. When the Court was originally established as the United States Customs Court, international trade regulation was fundamentally based on tariff rates, and the Court’s jurisdiction thus revolved around classification and valuation cases. H.R. Rep. No. 96-1235, 19.
The growth of multilateral and bilateral trade agreements led to a significant reduction in tariff duties and new regulatory frameworks. H.R. Rep. No. 96-1235, 18. Jurisdiction in this area became “a jigsaw puzzle with enough missing pieces to make it difficult for any but the closest observer to discover what the completed puzzle was meant to depict.” H.R. Rep. No. 96-1235, 19. As a result, there was great confusion over the respective areas of subject matter jurisdiction of the Court of International Trade and the District Courts resulting in inconsistent judicial decisions, preclusive dismissals, and forum shopping. H.R. Rep. No. 96-1235, 19.
However, while the Act greatly expanded and defined the jurisdiction of the Court, conflicts have arisen in the interpretation of the Act as regards the jurisdiction of the Court over anti-dumping and countervailing duties cases. See Wuxi Seamless Oil Pipe Co., Ltd. v. United States, 893 F.Supp.2d 1347, 1352 (Ct. Int’l Trade 2013); Asociacion Colombiana de Exportadores de Flores (Asocoflores) v. United States, 13 C.I.T. 584, 586-87 (1989); Ceramica Regiomontana, S.A. v. United States, 5 C.I.T. 23, 25-27 (1983).
The jurisdiction of the Court of International Trade over countervailing duty and anti-dumping cases comes primarily from 28 U.S.C. 1581(c) which provides that the Court, “shall have exclusive jurisdiction over any civil action commenced under section 516a of the Tariff Act of 1930.” Section 516a is codified as 19 U.S.C. § 1516a “Judicial review in countervailing duty and anti-dumping duty proceedings.” See “Jurisdiction of Court of International Trade (28 U.S.C. § 1581),” 147 A.L.R. Fed. 273 §§ 1[a], 8[a], [b] (Originally published in 1998).
The Act further confers residual jurisdiction on the Court over any civil action commenced against the United States that arises out of any law providing for “tariffs, duties, or fees for reasons other than the raising of revenue,” however, this does not confer jurisdiction over “anti-dumping or countervailing duty determination which is reviewable [either by] the Court of International Trade under section 516(a) of the Tariff Act of 1930…” See 28 U.S.C. §§ 1581(i)(1), (2), and (4).
C. The Exercise of Primary Jurisdiction Alone Over the Turkish Steel Cases
Primary jurisdiction is available in countervailing duty cases under § 1581(c) where the plaintiff has exhausted all administrative remedies and the type of review requested is statutorily allowed under § 516a. The Court of International Trade considered only primary jurisdiction (§ 1581(c) jurisdiction) over all of the Turkish steel cases.
In order for the Court to have jurisdiction to hear a case that falls under § 1581(c), the plaintiff must have exhausted all administrative remedies and the type of review must be covered by the statute § 516a. See McKart v. United States, 395 U.S. 185, 193 (1969); Sandvik Steel Co. v. United States, 164 F.3d 596, 599 (Fed. Cir. 1998). Exhaustion is a long-standing rule in administrative law. See generally Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938); 3 K. Davis, Administrative Law Treatises 20.01 et seq. (1958 ed., 1965 Supp.).
Fulfilling the statutory requirement of § 1581(c) and § 516a requires that the determination be listed in § 516a and follow the rules laid forth in § 516a.
For jurisdiction to exist under § 1581(c), the action must be commenced under § 516a and the agency determination reviewable under § 516a. 28 U.S.C. § 1581(c); 19 U.S.C. § 516a. One reviewable determination under § 516a is “a determination by the administrating authority to suspend… a countervailing duty investigation, including any final determination resulting from a continued investigation which changes the… net countervailable subsidy calculated, or the reasoning underlying such calculations…” See 19 U.S.C. § 516a(a)(2)(B)(iv).
The other reviewable determination available under § 516a is “a determination by the administering authority as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing… countervailing duty.” See 19 U.S.C. § 516a(a)(2)(B)(vi). These reviews can be made within thirty days after the publication of the determination in the Federal Registry. See 19 U.S.C. § 516a(a)(2)(A)(i)(II).
“The United States, as sovereign, is immune from suit save as it consents to be sued,” and “the terms of its consent to be sued in any court define that court’s jurisdiction to entertain that suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941). For this reason, a waiver of sovereign immunity cannot be implied, it must be expressed. United States v. Mitchell, 445 U.S. 535, 538 (1980). Thus, to the extent that there are any ambiguities in the language of 28 U.S.C. § 1518(c) and 19 U.S.C. § 516a, they must be resolved in favor of immunity. See United States v. Williams, 514 U.S. 527, 531 (1995).
These limits are not subject to broad judicial interpretation or implied exceptions. Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (1986). In Georgetown Steel, plaintiff did not file its complaint until 43 days after the summons, therefore failing the thirty days requirement of § 516a(a)(2)(A)(i)(II). See 801 F.2d at 1312. Because this clause “specifies the terms and conditions upon which the United States has waived its sovereign immunity,” the limitation was not subject to an implied exception. See id.
For 28 U.S.C. § 1581(c) (primary) jurisdiction to be appropriate, the party challenging the administrative action must have exhausted all administrative remedies.
The Court takes a “strict view” of the exhaustion doctrine. See SeAH Steel Corp. v. United States, 764 F.Supp.2d 1322, 1325 (Ct. Int’l Trade 2011); Jiaxing Brother Fastener Co., Ltd. v. United States, 1355-57 (Ct. Int’l Trade 2010). “This is not from caprice or blind adherence to custom, but rather due to statutory mandate.” SeAH, 764 F.Supp.2d at 1325; see 28 U.S.C. § 2637(d) (requiring the Court of International Trade to require the “exhaustion of administrative remedies” where appropriate).
In Essar Steel Ltd. v. United States, Commerce put in place a countervailing duty review. See 908 F.Supp.2d 1306, 1308-09 (Ct. Int’l Trade 2013). Essar (plaintiff) sued stating the Commerce did not explain its AFA rate methodology, that Commerce should have included in its AFA calculation information from a 2006 review that concluded that Essar did not receive benefits under the CIP program, and then raised several new complaints including that Commerce did not apply the subsidy rate properly. See Essar, 908 F.Supp.2d at 1311.
The Court held that Essar failed to raise these issues at the appropriate time, and that the time for Essar to raise these issues was in its comments before remand. See id. Because Essar failed to raise these issues at the proper time, it therefore “abandoned its arguments by failing to exhaust its administrative remedies before Commerce.” See id. at 1312.
However, the Court has discretion to create exceptions to the exhaustion doctrine in certain circumstances. See Agro Dutch Indus Ltd. v. United States, 508 F.3d 1024, 1029 (Fed. Cir. 2007). The Court has found certain exceptions to the exhaustion requirement apply. See SeAH, 764 F.Supp.2d at 1325-26; Jiaxing, 751 F.Supp.2d at 1355-56.
These exceptions are where exhaustion “would be a useless formality,” where an intervening legal authority “might have materially affected the agency’s actions,” the issue involves a “pure question of law not requiring further factual development,” where “clearly applicable precedent” should have bound the agency, and where the party “had no opportunity to raise the issue before the agency.” See SeAH, 764 F.Supp.2d at 1325-26; Jiaxing, 751 F.Supp.2d at 1355-56.
In Qingdao Taifa Group Co., Ltd. v. United States, the Court held that Taifa (plaintiff) did not have a fair opportunity to challenge these issues at the administrative level because the Commerce Department did not address the AFA issue raised. See 647 F.Supp.2d 1231, 1237 (Ct. Int’l Trade 2009). The plaintiff was not required to predict that Commerce would accept other parties’ arguments and change its decision, and therefore the exhaustion doctrine did not apply. See id.
D. The Exhaustion Doctrine in the Turkish Steel Cases.
The Court dealt with the exhaustion doctrine at length in the case Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. v. United States, 31 C.I.T. 1793 (2007). In that case, the issue at hand was Habaş Sınai ve Tibbi Gazlar İstihsal Endüstrisi’s (hereinafter Habas) challenge of Commerce’s pricing methodology and Commerce’s use of the invoice date rather than the contract date as the date of sale in its calculations. Habas, 31 C.I.T. at 1796.
The Government, citing McKart, contended that Habas had not exhausted all administrative remedies on the issue of the date of sale. See id. at 1800. The Government argued that Habas had not stated that the reason for a billing adjustment changing the sale price at the invoice date was the result of a contractual provision during its administrative review. See id.
However, the Court disagreed with the Government’s allegation that Habas had not exhausted its administrative remedies as regarded the contract date issue. See id. at 1801. The Court noted that Commerce had “in effect, changed horses midstream.” Id. at 1800. Commerce had not referred to the billing adjustment as a reason for rejecting the contract date in favor of the invoice date during the administrative review, and had only put it in the final results. Id. Commerce had essentially reached a result and then attempted to justify it, and Habas could not be said to have failed the exhaustion doctrine’s test on these grounds. See id.
However, in the same case, Habas challenged Commerce’ use of a single weighted-average period of review rather than quarterly-average costs when calculating the dumping margin. See 31 C.I.T. 1793, 1796 (2007). Commerce admitted that its final results did not take into account Habas’ legitimate concern that it had faced a price surge in the final quarter thus making the weighted average methodology unrepresentative. See id. at 1797. Commerce requested that the case be remanded for them to address these issues, which Habas “vehemently” opposed. See id. at 1798.
The Court, noting that “it is difficult not to sympathize with Habas’ palpable frustration,” expressed hesitation at remanding the issue to Commerce for further consideration. Id. The Court noted that Habas was justifiably skeptical of the result of a remand such as that requested by Commerce, and that Habas might be said to have exhausted their administrative remedies. See id. at 1799. Nevertheless, the Court also noted that the Government must be presumed to have acted in good faith, and that Habas had no specific evidence to substantiate its claim of prejudgment by Commerce. See id. The Court therefore remanded the case to Commerce, but with instructions to address Habas’ concerns. See id. Habas would then be able to challenge the final results of such a review under 28 U.S.C. § 1581(c) jurisdiction. See Essar, 908 F.Supp.2d at 1311.
In Nucor Corp. v. United States, US domestic steel producers alleged that the exhaustion doctrine barred a Turkish steel producer from making the argument that it had relied on Commerce’s adoption of an Export Price rather than a Constructed Export Price pricing methodology. 612 F.Supp.2d 1264, n. 81. However, the Court held that the exhaustion doctrine did not apply because the Turkish producer could not have reasonably made an argument of reliance prior to the final review being published and the application of the exhaustion doctrine was at the discretion of the court. See id. Furthermore, the Court noted that the domestic producers did not raise the issue during oral arguments. See id.
In Borusan Holding, A.S. v. United States, Commerce reduced Borusan's purchase price (in the United States) arguing that Borusan had in a sense evaded the countervailing duty by refunding the importer (Tubeco) for the amount of the duty. See 16 C.I.T. 278, 282 (1992). Commerce alleged that Borusan knew that Commerce (ITA) intended to reduce all purchase prices, and thus Borusan should have known that the sales through Tubeco would be included in this reduction. See id. at 284.
While conceding that Borusan was required to address all issues in its administrative review, and that "where appropriate" the Court would require the exhaustion of administrative remedies,” the Court held that Borusan had in fact exhausted the administrative remedies. Id. The Court held that Borusan was "not aware" of the ITA's methodology for calculating the dumping margin, and therefore had no way of knowing how its sales through Tubeco would be treated until the final review was published. See id.
However, in Ekinciler Demir ve Celik Sanayi A.S. v. United States, the Court held that the Turkish steel producer had not exhausted all administrative remedies. See 32 C.I.T. 286, 290 (2008). In Ekinciler, the Turkish steel producer (plaintiff) asserted that the a disputed sale in its home market was not a normal sale, but rather an abnormal sale that should not be included in the calculation as it was a “ceremonial” first sale. See id. at 289. However, the plaintiff had not “provided any evidence regarding the sale’s allegedly unusual circumstances or argument that it was outside the ordinary course of trade until the Final Results were issued.” Id. at 290. As such a report would have factored into Commerce’s methodology, the plaintiff had failed to exhaust its administrative remedies. See id.
Steel exports from Turkey to the United States will continue to be an important part of the growing Turkey-U.S. bilateral trade relationship. They will also continue to be a contentious and difficult aspect of the relationship.
The jurisdiction of the U.S. Court of International Trade over such disputes is not always clear, and it will be increasingly important for Turkish steel producers to understand the extent to which they must work with U.S. administrative agencies before being able to seek judicial review in a more favorable forum.
The Exhaustion Doctrine is an especially important issue for Turkish producers seeking to challenge decisions by U.S. governmental agencies. While all courts require the exhaustion of administrative remedies, the U.S. Court of International Trade takes an especially strict view, as they explicitly said in SeAH, 764 F.Supp.2d at 1325.
In Habas, the Court of International trade stated that “Commerce is the master of the anti-dumping law and that factual determinations supporting anti-dumping margins are best left to the agency’s expertise.” 31 C.I.T. at 1799. The Court reiterated this word for word in Nucor, 612 F.Supp.2d at 1336-37.
Given this strong preference for the administrative review, the Court exercises jurisdiction over relatively few cases. Those that it does hear are almost uniformly those in which Commerce has either acted in such a way as to make continuing with the administrative process largely futile (e.g., Habas), or those in which relief depended on the final results of the administrative review (e.g., Nucor and Borusan).
In comparing Ekinciler, where the Court declined to exercise jurisdiction, with Borusan, where the Court did exercise jurisdiction, it is striking how facially similar the complaint was. Neither Turkish producer had submitted a challenge to an administrative pricing issue during the review process. The fundamental difference between the cases was that in Borusan the Turkish producer had no way of knowing the administrative agency’s methodology while in Ekinciler, the Turkish producer should have reasonably expected to submit evidence regarding a pricing abnormality.
Because of the exceptionally strict view of the exhaustion doctrine taken by the Court, those steel producers seeking to challenge determinations at the Court of International Trade must be certain to have taken all foreseeable steps towards working within the administrative process. This can be a long and frustrating road as in Habas, but is ultimately necessary for obtaining judicial review.